This revision application under section 439, Cr. P. C. Is directed against an order of F. E. R. Tribunal & Sessions Judge, Karachi passed under section 23 of the Foreign Exchange Regulation Act, directing that an amount of Rs. 7,248 in Pakistani currency alleged to have been recovered from the possession of the accused/applicant may be confiscated to the State.
2. The facts in brief are that on 29th March 1976 the F. I. A. Seized foreign exchange, namely, U. S. Dollars, Saudi Rials, Umani rials and U. A. E. Dirhams from possession of the accused/applicant who was doing his business on the footpath outside the State Bank. In the course of the personal search the above-mentioned Pakistani currency was also recovered from him and all this currency was entered in the mashirnama prepared on the spot. It was the case of the accused/applicant that he had acted as stock witness of the F. I. A. In number of cases under the Foreign Exchange Regulation and he produced a bunch of summons to substantiate his stand. However, it appears that under that cover, the accused/applicant, it is alleged, carried on this business himself with the result that this time he was not spared. Afterwards during the trial, however, the prosecution witnesses kept back and only one witness Abubakar was examined. The accused-applicant in his statement denied the recovery and he did not claim even the Pakistani currency found from his possession.
After he was acquitted for want of sufficient evidence he made an application for return of the Pakistani currency to him. The foreign exchange tribunal, however, ordered confiscation of the Pakistani currency as the accused had not claimed it during the trial.
3. Since no such provision is made regarding the appeals against orders disposing of the property under F. E. R. Act the general law in the Criminal Procedure Code would apply. Under section 520, an appeal would lie from an order passed under section 517 regarding disposal of property. If no such appeal is filed then section 439, Cr. P. C. Subsection (5), no proceedings by way of revision could be entertained. However, this revision application is being treated as an appeal.
4. The order of confiscation of the Pakistani currency appears to have been passed under section 23 of the Foreign Exchange Regulation Act, 1947. Under this section the tribunal in addition to any sentence to be imposed for contravention of the Regulation may direct any currency, security, gold or silver or goods or other property in respect of which the contravention has taken place to be confiscated. It has not been alleged that any contravention of any Regulation had taken place in respect of the Pakistani currency. Nor is it the case of the prosecution that the foreign currency was sold or converted into Pakistani currency. Case is regarding the possession of the foreign currency only. Under these circumstances the Pakistan currency could not be confiscated by the tribunal under section 23 of the said Act.
5. A question then arises, that when the accused/applicant had not claimed the Pakistani currency during the trial and had suggested that nothing had been recovered from him, and he had been falsely implicated, coin it be believed that the Pakistani currency was actually recovered from hi and it belonged to him: During the trial the accused/applicant did not tak the risk of claiming part of the recovered currency. But now that he has been acquitted he has claimed Pakistani currency regarding which no offence was committed.
6. Since under the judgment of the Court the recovery of currency from the possession of the accused-applicant has not been relied upon, it cannot be considered now to have been found from the possession) of the accused/applicant. This amount of Rs. 7,248 in Pakistani currency produced before the Tribunal has, therefore, to be regarded as unclaimed property.
7. Ordinarily the property regarding which no offence is committed cannot be confiscated to the State. This cash amounts, should, therefore, he held in deposit, and it should be open to the accused/applicant to substantiate his claim to this cash amount by filing a suit for the same in a civil Court of competent jurisdiction. In case after a reasonable time no such claim is preferred, the property could then be disposed of by the F. E. R. Tribunal as unclaimed property under the relevant provision contained in the Criminal Procedure Code.
8. With these observations the revision application is otherwise dismissed.